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An Arlington family hired Texas defense attorney Michael Lowe to defend their son on a potential federal trafficking of child pornography. A few days before, the Department of Homeland Security (“DHS”) under Homeland Security Investigations (“HSI”) executed a federal search warrant for computers and hard drives at the Arlington family residence.

Mr. Lowe’s client was a senior in high school in his last semester. As soon as Mr. Lowe was hired, he began working with his client to prepare him for the federal case, which would allege a violation 18 U.S.C. § 2252.

Lowe’s Client: an Arlington High School Senior Subject of Search Warrant by Homeland Security

HSI agents began investigating Mr. Lowe’s client based on images and videos which were uploaded to a “Mega” cloud account in New Zealand using fake gmail accounts. Mega was started by the great Kim Dotcom who has battled with the U.S. government concerning copyright infringement. Kim is also frequently in the news due to his furtive relationships with Anarcho-freedom fighters like Julian Assange and his Twitter prediction that he would be Hillary Clinton’s worst nightmare come election time; e.g. Podesta emails and later Seth Rich conspiracy.

Image: Kim Dotcom

After a hostile take-over of the Mega sight by a Chinese investor and subsequent failure of the business, Kim Dotcom publicly warned folks that the New Zealand Department of Internal Affairs had seized total control of the Mega site.

The New Zealand police unsurprisingly dropped the dime on Mr. Lowe’s client and referred the case over the U.S. Department of Homeland Security.

Oral Confession

Upon seizing the client’s hard drives, the client gave an oral confession to the HSI agent concerning child porn. Department of Homeland Security conducted a forensic analysis of the computer which yielded 33,769 images of child pornography. The forensic analysis also demonstrated that the client traded child porn.

Categories of Federal Child Pornography

There are three major categories related to federal child pornography case and set out in 18 U.S.C. §2251, §2252, §2252A. The three categories are commonly referred to as (1) production of child pornography, (2) interstate Transportation and/or Receipt of Child Pornography, and (3) Possession of Child Pornography. Transportation, Receipt, possession with the intent to sell or transport child pornography are set out in §2252(a)(1-3).

Upon conviction, they each carry a mandatory minimum punishment of 5 years and a maximum of 20 years. Federal Courts have held that knowingly uploading files to a server or knowingly participating in a peer to peer network wherein the user’s computer was used to upload files constitutes transportation of child pornography. 18 U.S.C. §2252(b)(1) sets the penalty range for these “transportation” offenses at 5-20 years in the Bureau of Prisons.

Possession of Child Pornography includes knowingly possessing or knowingly accessing with the intent to view child pornography. 18 U.S.C. 2252(a)(4)(B). Up until 2012, all possession of child porn indictments carried a sentencing range of 0-10 years in the Bureau of Prisons. However, in 2012, 2252 was amended to increase the maximum penalty range to 20 years if the images were “prepubescent” children. Unfortunately, the federal statute has not been updated on the U.S. GPO website.

There’s also a lot of misinformation online about federal possession of child porn cases only carrying a max of 10 years. This is only correct for non-prepubescent possession cases in federal court. I wouldn’t hold my breath for 10 year cap in federal child porn case; they really don’t exist.

Pursuant to ruling in Apprendi v. New Jersey, to increase the maximum cap to 20 years, there only need be proof beyond a reasonable doubt found by a jury or the defendant stipulate to the enhancement. Due to the online confusion, I’ve included for reference the current §2252 version.

Plea Negotiations

Because Mr. Lowe’s client conduct constituted a violation of both the possession and the transportation provisions of §2252, Mr. Lowe wanted to negotiate a plea agreement without a mandatory minimum 5 year sentence.

Mr. Lowe was able to persuade the U.S. Attorney to allow his client to plead to a violation of 18 U.S.C. 2252(a)(4)(B), which carries no mandatory minimum.

After Mr. Lowe’s client pled guilty, the U.S. Probation officer assigned to the case prepared a pre-sentence report which include the U.S. Sentencing Guideline (USSG) calculations applicable to the case. The USSG are used to in all federal sentencing to sentence defendants.

Sentencing Guidelines

Before U.S. v. Booker, the USSG were applied in an inflexible and deterministic manner at all federal sentencing. They were mandatory. I used to sometimes hear federal judges apologizing to defendants upon sentencing them. They would explain that their hands were tied by the USSG.

Since the Booker ruling, the USSG are not mandatory and typically used as an important guide in sentencing defendants in federal court. In practice, most federal judge still simply follow the USSG and rarely depart downward.

The guidelines are determined based on two factors: (1) total offense level and (2) criminal history category. Once those two numbers are calculated, one need only refer to the sentencing table to find the “appropriate” sentencing range for the case.

In this case, the USPO correctly calculated virtually every applicable USSG enhancement. USSG §2G2.2 is governs the guideline calculation and enhancements. Here it is:

+4 levels for images which depict sadistic/masochistic conduct or sexual abuse of a toddler pursuant to USSG §2G2.2(b)(4)

+2 levels for use of a computer for the possession; aka using the internet enhancement pursuant to USSG §2G2.2(b)(6).

+5 levels for 600 or more images (total of 33,769 images) pursuant to USSG §2G2.2(b)(7)(D)

Guideline Range

After a 3 level acceptance of responsibility reduction, the total guideline range was 33 and criminal history category was 1. So the applicable guideline range was correctly calculated to be 135 to 168 months in the Bureau of Prisons.

In addition, the USPO presentence report recommended that the Judge upward depart from the recommended guideline range. In particular, USPO argued that USSG §2G2.2, comment (n.(6)(B)(ii)) indicates that an upward departure may be warranted if the length of visual depiction is substantially more than 5 minutes.

USPO correctly found the client possessed more than 450 videos, many of which ranged from 8-17 minutes. There were two videos each of which were greater than 30 minutes.

Because Mr. Lowe knew his client’s guideline range would be very high, he negotiated an unusual plea agreement which limited the judge’s discretion to a 4 year sentence. This type of plea is called an 11(c)(1)(C) plea agreement made pursuant to Rule 11 of the Federal Rules of Criminal Procedure.

Mr. Lowe knew that the maximum applicable guideline sentence would be 168 months. Therefore, 4 years represented a 120 month reduction from the maximum applicable guideline range. That is, the sentence which the court was bound by was reduced by 71% from the recommended maximum.

Before the sentencing hearing began, Federal Judge Terry Means announced he was “inclined to reject the plea agreement”. I have included redacted transcript excerpts:

Before Judge Means heard the evidence Mr. Lowe had prepared for sentencing, the judge simply knew that Mr. Lowe’s client was being given too good of a deal and he didn’t want to accept the deal. Mr. Lowe persisted with his evidence.

In particular, Mr. Lowe was able to get his client evaluated. The client also began treatment before he was detained. Mr. Lowe put evidence from an expert Psychologist who specializes in the rehabilitation of sex offenders at the sentencing hearing. Mr. Lowe also presented other testimony.

At the conclusion of the evidence and argument, Judge Means was so persuade by the evidence he elected to sentence less than the agreed-upon 4 years. I’ve also included the redacted Judgment in the case:

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